Thread by @barandbench

CHALLENGE TO TRIBUNAL RULES, 2020:

#SupremeCourt Bench headed by Justice L Nageswara Rao resumes the hearing on petition filed by the Madras Bar Association (MBA) assailing the Tribunal Rules of 2020 on grounds of being in violation of principles of separation of power.

Attorney General for India KK Venugopal begins making his submissions.

AG: Supreme Court in Rojer Mathew had upheld Section 184 of Finance Act in its entirety which says that the tenure should not exceed five years.

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AG: Reappointment is by the same selection committee. This is an entirely safe procedure where if a member is writing judgements in time and is working with integrity, then the member can be reappointed.

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AG reads the excepts from the Rojer Mathew judgment which dealt with the question of three year tenure for members of Tribunals noting that this duration for tenure may be suitable for retired Judges but not for practising advocates.

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AG reiterates that the provision for reappointment addresses this concern adequately with respect to Advocates appointed as member of Tribunals.

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AG (On the issue of provision for housing for Tribunal members): If they are not accorded with the status of High Court Judges (as is held in Rojer Mathew) then I don't think they can ask for housing.

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AG (On request for another Judge on the Search and Selection committee): There are 19 Tribunals, every time there is a vacancy that arises, it has to be filled then and there. Having one more Judge will affect the judicial functioning and judicial time.

Justice L Nageswara Rao: Why doesn't the government consider the National Tribunals Commission as was suggested in Chandra Kumar Judgment?

AG: I believe it will perhaps be a more conducive way for effective and independent functioning of Tribunals...

AG:... What I suggest is Your Lordships may suggest in favour of National Tribunals Commission again.

Justice Rao: Why don't you suggest it to the government, Attorney?

AG: I will certainly suggest it to the govt, but I suggest Your Lordships also reiterate this suggestion.

AG (On restrospectivity of the Rules): Rules of 2017 were completely struck down and a vacuum was created which was later filled by 2020 Rules.

(AG refers to provisions under Sections 183 and 184 of Finance Act)

AG: I have submitted the note with all these submissions.

So my submission is that the Rules may be allowed to stand.

(AG concludes his submissions)

(SC allows other Counsel to make submissions, but adds that the submissions of each person cannot be longer than 5 minutes)

Justice Rao: We want to wind up the arguments in this case today.

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Senior Counsel Siddharth Luthra for applicant Rachna Gupta (from CESTAT): My submission is only this that Rule 1(2) of 2020 Rules talk about date of coming to force as being 12 February, 2020.

It says they come into force on the date of their publication in gazette.

Luthra: They can't be applicable form the date of appointment at the time when the Rules did not exist.

Nowhere does it suggest that the Rules can be made restrospective.

Luthra: While S184 exists, Rules cannot be brought in restrosoectively.

(On facts) I can't be treated differently from those similarly placed.

Senior Counsel CS Vaidyanathan makes very brief submissions for an applicant.

CSV supports AG's arguments.

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Senior Advocate Rakesh Khanna for a transfer petitioner: For new appointment under new Rules, the Advocate quota is debarred for DRT appointment.

For fresh selection, he may not be considered for DRT because Advocates are not considered.

Justice Rao: Please argue on law, Mr. Khanna. What you're saying is lawyers should be made eligible for DRT?

(Khanna answers in the affirmative)

Senior Advocate AS Chandhiok makes his submissions with respect to NCLT and NCLAT.

Chandhiok: NCLAT chairperson (Justice Bansi Lal Bhat) is due to retire and my submission is Your Lordships may protect their appointment till Your Lordships pass orders on this petition

Senior Counsel PS Narasimha: What S183 actually provides is from the appointed date, Central government can and is enabled to make Rules and if they are made, they will apply.

183 is only intended to talk about the power to make Rules.

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(Senior Counsel Vikas Singh (for an applicant) seeks to make arguments with respect to a member of the CESTAT)

SC: These arguments have been made three times over. We have taken note of all the se aspects

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Advocate Rajiv Manglik: Rule 4(4) of 2020 Rules states that these Rules shall not be applicable to persons already appointed.

SC: We have made note of this point.

Advocate Rajshekhar Rao: Your Lordships had allowed selection processes to be continued.

ITAT selection was completed in 2019 but this entire seoection is likely to be ousted because of this intervention

Senior Counsel Arvind Datar:

(On ILS members) we have two judgments which say we cannot have ILS members as judicial members.

Datar: AP HC in a Full Judge judgment had said Sampat Kumar is per incuriam.

The theory Sampat Kumar gives conflict to Madras Bar is not correct.

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Datar: Rojer Mathew says apply Madras Bar and Chandra Kumar strictly.

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Datar: AG says that tenure cannot be exceeding five years.

Then why keep it at 4 years, less than five can be anything from 1 month to 5 years.

My submission is read the proviso in spirit.

Datar: Term cannot be less than five years.

I find it extremely disturbing that Your Lordships have to suggest three Judges and then the government will say who has a good IB report etc.

Datar: If specialisation is the key for advocates then my submission is that even ILS members should be subject to that.

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SC asks Datar to also submit detailed written submissions.

SC expresses inclination to extend the tenure of any member whose tenure is about to expire till December 31.

SC allows Counsel to submit written submissions, asks then to give a copy to Datar and AG also.

Supreme Court reserves its Judgment on the petition challenging the Tribunal Rules of 2020.

~ Order ~

In case the term of any Chairperson, Vice Chairperson or members of the Tribunal is expiring, the same stands extended till 31/12/2020.